Chapman v. Enos

• Decision Date: 10 March 2004
• Docket Number: No. A097943.,A097943.
• Citation: Chapman v. Enos, 10 Cal.Rptr.3d 852, 116 Cal.App.4th 920 (Cal. App. 2004)
• Court: California Court of Appeals
• Parties: April CHAPMAN, Plaintiff and Appellant, v. Bruce ENOS et al., Defendants and Respondents.

10 Cal.Rptr.3d 852

116 Cal.App.4th 920

April CHAPMAN, Plaintiff and Appellant, v.Bruce ENOS et al., Defendants and Respondents.

No. A097943.

Court of Appeal, First District, Division 4.

March 10, 2004.

James M. Wagstaffe, San Francisco, Pamela Urueta, Timothy J. Fox, San Francisco, Kerr & Wagstaffe LLP, Gary Moss, Mary Patricia Hough, Moss & Hough, San Francisco, for Appellant.

Gail F. Flatt, Janis H. Grattan, Santa Rosa, Provencher & Flatt LLP, for Bruce Enos.

Michael D. Senneff, Bonnie A. Freeman, Santa Rosa, Senneff Freeman & Bluestone, LLP, for County of Sonoma.

RIVERA, J.

April Chapman(Chapman) appeals from a judgment upon a special verdict finding in favor of defendantsBruce Enos(Enos) and the County of Sonoma(County) on her causes of action for sexual harassment and retaliation.The pivotal issue for liability was whether the alleged harasser, Enos, was Chapman's supervisor.Chapman contends that the trial court erroneously modified the standard jury instruction on the definition of supervisor.We agree and conclude that the error requires reversal.

I.FACTUAL BACKGROUND

A. Chapman's Work History

In 1988, Chapman became an investigator for the County District Attorney's Office.She had previously worked as a deputy sheriff for the County Sheriff's Department for 10 years.As an investigator, Chapman's duties involved investigating cases"under limited direction."Her responsibilities included "investigat[ion of] criminal and civil complaints, interview [ing] or interrogat [ion of] witnesses, law-enforcement officers, defendants' victims and/or other individuals who may provide pertinent information; [and] evaluat [ion] and analy[sis of] information."Chapman performed her duties under the direction of the deputy district attorney assigned to her unit but was under the supervision of the senior and chief investigators.The senior and chief investigators, and the district attorney, were responsible for hiring and firing investigators.The senior or chief investigator approved vacation leave for investigators.An investigator assigned to a vertical prosecution unit worked as a team with the deputy district attorney assigned to that unit and received instructions from that attorney.

B. Chapman's Duties and Assignments in the Major Fraud Unit

In January 1997, Chapman was assigned to the major fraud unit, a unit initially devoted to the prosecution of insurance and worker's compensation fraud.¹Enos was the deputy district attorney assigned to the unit.The unit was located in a satellite office suite away from the main office.The unit shared office space with three other deputy district attorneys.Chapman's desk was in the common area of the suite.Enos and Chapman worked at the office suite for the majority of the workday while the other deputy district attorneys were generally there only in the mornings or late afternoons.

As an investigator for the major fraud unit, Chapman did front-line investigations, which included interviewing witnesses, obtaining search warrants and preparing a case for a complaint.She also did case preparation work, worked with law enforcement agencies and the Department of Insurance in developing cases, met with insurance companies, and conducted trainings.During the period that Chapman worked in the fraud unit, Enos directed her in virtually all of her duties.She received no assignments from her direct supervisors, the senior and chief investigators.While Enos did not have the authority or responsibility to promote her and was not responsible for preparing performance evaluations, the chief investigator would ordinarily seek his input in evaluating Chapman.²Chapman routinely "cleare[d]" her time off with Enos prior to seeking approval from the chief investigator, and believed that this was required.It was Chapman's understanding of County policy that any incidences of sexual harassment were to be reported to the individual's supervisor; in Chapman's case, she understood that Enos was her supervisor, or her "boss."

Enos testified that he was not responsible for Chapman's work performance and was not subject to discipline if her work was not properly completed.Enos and others testified that the deputy district attorneys do not tell investigators how to do their work, but do "direct" the investigators' work in the sense of describing and assigning the tasks to be done.In effect, both Enos and the County denied that Enos exercised any supervisory authority over Chapman.

C.Harassing Conduct

Within the first two months after Chapman began working in the major fraud unit, she noticed a change in Enos's behavior toward her.He would eavesdrop on her telephone conversations, and became very interested in who she was spending time with outside the office.Enos conceded that he developed a crush on Chapman.He testified that he was trying to develop a friendship with her that would extend beyond the office.Chapman testified that Enos acted inappropriately in the office numerous times including asking to join her on "field trips" when she conducted witness interviews where his presence was not justified, asking if he could go on her noon time walks and commenting if he could watch or help when she went to change her clothing for the walks, making inquiries into her private life, and giving her small gifts.Chapman told Enos that she wanted only a business relationship with him and asked him not to give her any more gifts.Enos, however, did not stop with his inappropriate behaviors.He asked to join her on a cruise, prepared a business card that included a caricature of a woman with her skirt slit all the way up to her crotch area and her jacket cut down to her cleavage and asked her, "If I kill my wife, would you run away with me?"Enos subsequently asked her to join him for coffee over the weekend.Chapman declined the invitation and the following workday told him that his attentions were inappropriate.For the next four or five weeks, Enos did not bother Chapman.She thereafter received a voice mail message from Jerome Mautner(Mautner), another deputy district attorney, in which he repeated her name and used heavy breathing.Enos could be heard in the background during the message, laughing and saying, "I didn't tell him to call you."

Enos's behavior towards Chapman continued during 1998.Due to that behavior and the close working environment, Chapman became "[r]eally miserable."She dreaded going in to work, had difficulty doing her work, and was made to feel "very uncomfortable, very upset."Ultimately, it resulted in chronic stomach problems, difficulty sleeping and a loss of concentration.On November 10, 1998, she reported Enos's inappropriate behavior to Michael Mullins(Mullins), the District Attorney.³Mullins said that he would investigate her allegations and transferred her to the main office effective the following workday.Mullins subsequently disciplined Enos with a one-week suspension from work.

D.Procedural History

On November 1, 1999, Chapman filed a complaint for sexual harassment, retaliation, failure to promote, public disclosure of private facts, breach of contract, breach of the covenant of good faith and fair dealing, and negligent and intentional infliction of emotional distress.She subsequently amended her complaint and named County, Mullins, Enos, Mautner, and Jack Karr as defendants.Defendants moved for summary judgment.The court granted the motions on Chapman's causes of action for breach of contract and breach of the covenant of good faith and fair dealing and negligent infliction of emotional distress.The court also granted Enos's motion as to Chapman's intentional infliction of emotional distress claim.The court denied defendants' motion for summary judgment on the sexual harassment claim, finding that there was a triable issue of fact as to whether Enos's conduct constituted sexual harassment and whether he was a supervisor.The court further denied summary judgment on the causes of action for retaliation, public disclosure of private facts and intentional infliction of emotional distress as to County, Mullins and Mautner.

The remaining claims were tried before a jury.By special verdict, the jury found that Chapman had not proven by a preponderance of the evidence that Enos was her supervisor.Although the jury found that Mullins had taken an adverse employment action against Chapman and that the action was motivated by her complaint of sexual harassment, the jury found that there was a legitimate nondiscriminatory reason for the adverse employment action.The jury also found against Chapman on her cause of action for public disclosure of private facts.⁴

Chapman moved for a new trial contending that the court erroneously modified the language defining a supervisor in BAJI No. 12.08.The trial court denied the motion, finding that its modified instruction was a correct statement of the law and that even if erroneous, Chapman failed to object to the instruction and invited the error by citing Maine Yankee Atomic, etc. v. N.L.R.B.(1st Cir.1980)624 F.2d 347(Maine Yankee) in her trial brief.This appeal followed.

II.DISCUSSION

A.Service of Notice of Appeal

Preliminarily we address County's argument that Enos is not a party to this appeal because Chapman did not serve her notice of appeal or her designation of record on appeal upon Enos.While County acknowledges that Enos has participated in the appeal, it contends that the appeal must be dismissed because Chapman's notice failed to notify the parties that the judgment in favor of Enos was being appealed.This contention lacks merit.

"Failure to serve the notice of appeal neither prevents its filing nor affects its validity, but the appellant may be required to remedy the failure."(Cal. Rules of Court, rule 1(a)(3).)Here, Chapman remedied the failure by obtaining an agreement from Enos to waive any defects in service.⁵Consequently, Enos is properly a...